Statement by the Honourable Allan Rock
Minister of Justice
and
Attorney General of Canada

Concerning a
Reference to the Supreme Court of Canada
September 26, 1996

Ottawa

Check Against Delivery

Mr. Speaker, I rise in the House today to announce that I intend to refer to the Supreme Court of Canada certain specific questions of great importance to all Canadians.

I begin by reaffirming our deep conviction that our great country will remain strong and united both into and beyond the next century. On two occasions in the recent past, the majority of Quebecers have voted for a united Canada. Notwithstanding those democratic expressions of the popular will, the current Government of Quebec seems determined to bring the issue to a third vote at some future time. Moreover, they claim to be entitled to make a unilateral declaration of independence to create a separate state of Quebec. In our view, that position is contrary to Canadian law, unsupported in international law and deeply threatening to the orderly governance of our nation.

If another referendum is to be held, we are convinced that the population of Quebec will vote in favour of a united Canada a third time, and that they will do so because a united Canada is the better option, for themselves and for their children.

And just as Quebecers have chosen to stay within Canada in the past when they were asked to make a choice, Canadians everywhere know that Quebec's inclusion is essential to preserving the country that we cherish. As a Canadian who makes his home in Toronto, I can speak very personally in saying that, without Quebec, the magnificent dream and the shining ideal that is Canada would simply not exist.

However, we cannot avoid the serious difficulties created by the Quebec Government's assertion that there is the right to secede from Canada through a unilateral declaration of independence. The Government of Quebec has expressly stated that the Constitution and the courts have no role to play in determining the correctness of its position.

As we have argued in court and as I have asserted in this House, we believe this is wrong. To leave this issue unresolved would pose a serious threat to orderly government in Quebec and the rest of Canada.

The Federal Government does not argue against the legitimacy of a consultative referendum. A referendum is an opportunity for a government to consult with the people. But however important it may be, the result of a referendum does not, in and of itself, effect legal change.

There is no political justification to argue for a unilateral declaration of independence by the Quebec National Assembly. In most countries, the very idea of secession would be rejected. But this has not been so in Canada. There have been two referendums in Quebec. The leading political figures of all our provinces and the Canadian public have long agreed that the country will not be held together against the clear will of Quebecers. This government agrees with that statement. This view has arisen partly out of our traditions of tolerance and mutual respect, but also because we instinctively know that the quality and functioning of our democracy requires the broad consent of all Canadians.

Regrettably, Mr. Speaker, the view of the current Quebec Government on the nature and role of a referendum is quite different. We have therefore concluded that the responsible and the effective thing to do is to submit the issue for determination by the Supreme Court of Canada.

Let me be very clear: this issue is of enormous significance.

A unilateral declaration of independence would undermine political stability, interrupt the prevailing order and cast into doubt the interests and rights of Quebecers and all Canadians.

A unilateral declaration of independence would create the most serious difficulties for ordinary Quebecers. There would be widespread uncertainty within Quebec about which legal regime was effectively in control.

For the average citizen, business or institution in Quebec, there would be the greatest confusion. Individual Quebecers would be uncertain what laws applied, what courts and law officers to respect, to whom to pay their taxes. In such an environment, it is certain that Quebec society would be deeply divided over the course the provincial government would have adopted.

Moreover, such a unilateral declaration of independence would have been made in the absence of an agreement with the rest of Canada on such fundamental issues as

- recognition for Quebec internationally;

- trade and economic arrangements;

- the rights of citizens to move within the country;

- the sharing of public debt and assets; and

- the use of currency and scores of other issues.

Quebec would likely find itself with no recognition by all or most of the international community, and unable to manage its relations with sovereign states. Quebec would be unable to issue recognized passports to its citizens or to represent their interests abroad. Its unilateral act would make it virtually impossible to issue public debt on international markets.

In other words, Mr. Speaker, the idea of a unilateral declaration of independence makes no sense no matter how it is considered. The issue is not a mere legal nicety. It is also of enormous practical significance. Any government that suggests that it would throw Quebec and all of Canada into the confusion of a unilateral declaration of independence is being profoundly irresponsible. It is a formula for chaos.

I firmly believe that we shall never reach the point of having to deal with the reality of Quebec's separation. But should such a day ever come, there is no doubt that it could only be achieved through negotiation and agreement. The Government of Canada believes that both our Constitution and international law protects us against the irresponsibility of a unilateral declaration of independence, and that is the very issue that we shall be taking to the Supreme Court of Canada.

Mr. Speaker, as I have stressed, our nation is built on shared values of tolerance, accommodation and mutual respect. Canadians are admired throughout the world because of our understanding of the need to accommodate one another to achieve our larger common purposes. In this respect, we share a commitment to using negotiation and orderly processes to work out differences -- something that Canadian individuals and businesses do every day. This commitment is what the international community has come to expect of Canada and to admire.

Canadians' shared values have guided us in the past and will continue to do so in the future. All Canadians, including Quebecers, can take pride in the civility and tolerance we have shown one another in dealing with this fundamental issue. There is every reason to believe that civility will continue. Our insistence on resolving questions raised by the prospect of Quebec secession through an orderly process and within the framework of law is simply consistent with those values.

However remote the possibility that a future referendum would reject Canada, it is essential that the legal framework that has enabled us to resolve our differences as Canadians peacefully and cooperatively be clearly established now, in advance of a referendum result.

That is the reason that we became involved in the Bertrand litigation before the Quebec Superior Court last May. It was only after the Attorney General of Quebec brought a motion last spring to dismiss that litigation that we decided to involve ourselves. The Attorney General of Quebec based his motion on the argument that neither the courts nor the Constitution of our country have any relevance to the process that the Quebec Government intends to follow in advocating separation, but that international law alone applies.

It was my obligation as the Attorney General of Canada, and the custodian of the Constitution of our country, to respond in the courtroom. There we argued that the Constitution is indeed relevant and that the courts have jurisdiction to deal with these issues. In addition, we argued that the Quebec government would have no right under international law to a unilateral declaration of independence. We submitted that while there are some limited circumstances in which international law provides a people with the right to secede unilaterally from an existing country, none of those circumstances exist in the case of Quebec within Canada. Our conclusions in this regard are largely consistent with those of five legal experts in international law, retained in 1991 by the Commission dealing with the issues relating to Quebec's sovereignty, which was established by the Government of Quebec.

When I welcomed the decision by Mr. Justice Pidgeon on August 30th last, I noted in particular that by deciding that the Court had jurisdiction to deal with the questions before it, Judge Pidgeon had confirmed the primacy of the Rule of Law.

What is this "Rule of Law"? What is its practical meaning, its social value? Is it simply a technical nicety used to overrule democratic decisions that the Federal Government does not agree with?

First and foremost, the Rule of Law, as it has developed in Canada and in other democratic countries around the world, is not simply a legal abstraction or a technical precept: it is a living principle that is fundamental to our democratic way of life. In substance, it means that everyone in our society, including ministers of government, premiers, the rich and powerful, and the ordinary citizen, is governed by the same law of the land. We are all bound by the Constitution, by the Criminal Code, by Acts of Parliament and the provincial legislatures. In cases of disputes regarding the interpretation or application of the law, the courts are the final arbiter.

The great value of the Rule of Law is that it is democratic. Its substance is derived from our democratic institutions. It applies to everyone without qualification. It also permits democracy to flourish because it establishes a stable framework within which the democratic process can work.

The separatist leaders argue that the Rule of Law is simply a ruse by which the Canadian Government intends to defeat an expression of democratic will by Quebecers -- a trick to deny the results of a lost referendum. They argue that to require an orderly process within the legal framework would place Quebec in a straightjacket, defeating the democratic result of a future referendum.

Such arguments are made, of course, for political effect. They are based on the pretension that the Rule of Law and democratic action are mutually exclusive. That is quite wrong. In fact, they co-exist in harmony. The safety of both depends upon the integrity of each, and failure to observe either endangers the two at once.

And simply to insist upon an orderly process is not to foreclose the acceptance of change.

The issue is not whether a democracy such as Canada can keep a population against its will: of course it cannot. The issue arises from the false claim of the Government of Quebec that it alone, in a unilateral fashion that changes according to its short-term political interests, can decide the process that may lead to secession. Quebecers, as well as their fellow citizens from the other provinces, would be dramatically affected by the break-up of our country. Everyone has the right to be certain that the process is clear, mutually acceptable, and fair to all.

That brings me, Mr. Speaker, to our decision to take steps intended to clarify the legal issues that have arisen between the Government of Canada and the Government of Quebec.

It is my intention to refer to the Supreme Court of Canada three specific questions for a decision by that Court on the fundamental issues that have arisen.

Here are the questions that we will be asking the Court:

1.Under the Constitution of Canada, can the National Assembly, legislature or Government of Quebec effect the secession of Quebec from Canada unilaterally?

2.Does international law give the National Assembly, legislature or Government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or Government of Quebec the right to effect the secession of Quebec from Canada unilaterally?

3.In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or Government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

It will be evident that these questions build upon the four fundamental issues identified by the Honourable Mr. Justice Pidgeon in his judgment, rendered August 30th last in the Bertrand litigation. While it would have been possible for the Government of Canada to remain involved in the Bertrand litigation and to argue these points at trial, we have, on such fundamental issues, a duty as a national government to ensure that they are brought to the courts directly with a view to an early and definitive judgment.

We have therefore decided to go to the highest court in the land and to ask it to address and decide these questions as soon as conveniently possible.

I also wish to emphasize that the questions we are putting to the Court, and that arose from the judgment of Mr. Justice Pidgeon, resulted directly from the position taken by the Attorney General of Quebec in the Bertrand litigation. I have therefore referred to the Supreme Court of Canada, in concise form, the fundamental matters put in issue by the Government of Quebec itself in moving to dismiss Mr. Bertrand's lawsuit.

I have written to the Attorney General of Quebec urging him to participate in the proceedings before the Supreme Court of Canada. It is obvious that there are profound differences in our respective views about these crucial legal matters. In keeping with our long tradition in this country, consistent with our values of civility and respect for democratic institutions, I call upon the Attorney General of Quebec to join me in a full, frank and open discussion of the very issues he has raised in the place where they are best resolved: in the highest court of the land.

Let me emphasize, Mr. Speaker, something that this government has tried to make clear from the outset. The Rule of Law is not an obstacle to change: it permits change to take place in an orderly way. It allows Canadians to alter and adjust the institutions that govern our country in a fashion that reflects our values of consensus, dialogue and accommodation.

I have every confidence that the courts will endorse and accept the position that I have put forward. Nonetheless, it is for the courts to make that determination, and we will, of course, respect and abide by the results.

There is every reason for all Canadians to continue to work to avoid ever having to deal with an attempt at secession. The world would never understand the failure of a country like Canada, which is a symbol of tolerance and so much that is noble and good in the human spirit. Canadians would never forgive themselves.

Our common objective must be to continue to work together, to improve our government to make the case for Canada in Quebec and to celebrate the great distinctiveness of Quebec as a fundamental characteristic of our country. The Federal Government is committed to doing this with Canadians and the provincial and territorial governments.

And whatever happens, we must continue to deal with one another with respect, with tolerance, through accommodation, and within the law. And that, Mr. Speaker, is democracy.